D.E. Johnson v. Bureau of Driver Licensing ( 2019 )


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  •                   IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Daniel E. Johnson                                 :
    :    No. 79 C.D. 2019
    v.                                :
    :    Submitted: August 9, 2019
    Commonwealth of Pennsylvania,                     :
    Department of Transportation,                     :
    Bureau of Driver Licensing,                       :
    Appellant                       :
    BEFORE:         HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE ELLEN CEISLER, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE McCULLOUGH                                             FILED: November 20, 2019
    The Department of Transportation, Bureau of Driver Licensing (DOT)
    appeals from the December 21, 2018 order of the Court of Common Pleas of Venango
    County (trial court) that sustained the statutory appeal of Daniel E. Johnson (Licensee)
    from the one-year suspension of his operating privilege imposed by DOT under section
    1547(b)(1)(i) of the Vehicle Code, 75 Pa.C.S. §1547(b)(1)(i), commonly referred to as
    the Implied Consent Law.1
    1
    Section 1547(b)(1)(i) reads, in pertinent part, as follows:
    (1) If any person placed under arrest for a violation of section 3802
    [relating to driving under the influence of alcohol or a controlled
    substance] is requested to submit to chemical testing and refuses to do
    so, the testing shall not be conducted but upon notice by the police
    Facts and Procedural History
    The underlying facts are not in dispute and were stipulated to by the
    parties. Specifically, the parties stipulated as follows:
    Officer Young[2] would have testified to responding to an
    accident on a private road where he came in contact with
    [Licensee]. The road was marked “Private,” and there is no
    borough maintenance on the road. Officer Young would
    have also testified that [Licensee] told him he was at the
    Sandy Creek Fire Department prior to getting into an
    accident. It is impossible to get from the Sandy Creek Fire
    Department to the location of the accident without traveling
    on a public road. [Licensee] emphasized he does not
    stipulate that he drove on those public roads. The parties
    have stipulated that Officer Young had reasonable grounds
    to believe [Licensee] was driving under the influence,
    [Licensee] was offered a chemical test, [Licensee] was given
    the appropriate warnings, and [Licensee] refused to submit
    to a chemical test. The parties also referenced that
    [Licensee] was charged criminally at CR 108-2018 from the
    incident.
    (Trial court op., 12/21/18, at 1-2; Reproduced Record (R.R.) at 42a-43a.)
    By letter dated February 5, 2018, DOT notified Licensee that his operating
    privilege was being suspended for one year as a result of his refusal to submit to
    chemical testing. Licensee filed a statutory appeal with the trial court, alleging that
    Officer Young did not adequately explain to Licensee the ramifications for refusing to
    officer, the department shall suspend the operating privilege of the
    person as follows:
    (i) Except as set forth in subparagraph (ii), for a period
    of 12 months.
    75 Pa.C.S. §1547(b)(1)(i).
    2
    Officer Young refers to City of Franklin Police Officer Jacob Young.
    2
    submit to chemical testing, i.e., that he could lose his driving privileges, and that
    suspension was not appropriate because Licensee was on a private road.3 (R.R. at 5a-
    6a.) The trial court conducted a de novo hearing on October 17, 2018. (R.R. at 29a-
    40a.)
    At this hearing, the parties entered the stipulations noted above into the
    record. Following entry of these stipulations, the parties addressed the private road
    issue. In that regard, the parties further stipulated that there was no obstruction to the
    public from entering this private road other than a sign stating that it is a private drive
    and that it would not have been possible for Licensee to have reached the location of
    the accident on the private road from the Sandy Creek Fire Department without having
    traveled on a public road. The parties further agreed that Licensee informed Officer
    Young at the accident scene that he was at the Sandy Creek Fire Department earlier in
    the evening, around 10:00 p.m. or 11:00 p.m., that the accident occurred around 2:00
    a.m. to 3:00 a.m., and that Officer Young responded within a few moments of receiving
    the call regarding the accident. (R.R. at 31a-33a.)
    By opinion dated December 21, 2018, the trial court sustained Licensee’s
    appeal. The trial court concluded that DOT failed to establish that Licensee operated
    his vehicle under the influence on a public highway or trafficway, which the trial court
    stated was necessary for an officer to have reasonable grounds to believe that an
    individual was in violation of driving under the influence. The trial court noted that
    the Implied Consent Law requires an officer to have reasonable grounds to believe that
    3
    Licensee also raised an additional issue that the DL-26 form that Officer Young used was
    improper because it threatened punishment if Licensee refused an intrusive blood draw instead of a
    less intrusive breath test. (R.R. at 5a.) However, at the de novo hearing, counsel for Licensee
    conceded that legal precedent from this Court, namely Garlick v. Department of Transportation,
    Bureau of Driver Licensing, 
    176 A.3d 1030
     (Pa. Cmwlth. 2018), did not support this claim, and that
    he just wished to preserve the issue should such precedent be overturned. (R.R. at 34a.)
    3
    an individual was driving, operating, or in actual physical control of a vehicle in
    violation of section 3802 of the Vehicle Code, 75 Pa.C.S. §3802, which in turn requires
    a finding that the offense occurred on a highway or trafficway. See Section 3101(b) of
    the Vehicle Code, 75 Pa.C.S. §3101(b) (“The provisions of . . . Chapter 38 . . . shall
    apply upon highways and trafficways throughout this Commonwealth.”). The trial
    court also concluded that our United States Supreme Court’s decision in Birchfield v.
    North Dakota, 
    136 S. Ct. 2160
     (2016), supports this conclusion. More specifically, the
    trial court stated that the following language from Birchfield, that “[t]here must be a
    limit to the consequences to which motorists may be deemed to have consented by
    virtue of a decision to drive on public roads,” id. at 2185, represents the clear intention
    of our Supreme Court that “implied consent statutes apply only to public roads.” (Trial
    court op., 12/21/18, at 4; R.R. at 45a.)
    DOT thereafter filed a notice of appeal with the trial court. In accordance
    with an order from the trial court dated January 23, 2019, DOT filed a statement of
    errors complained of on appeal alleging that the trial court erred as a matter of law in
    sustaining Licensee’s appeal on the basis of a lack of evidence that Licensee was under
    the influence of alcohol while driving, operating, or in physical control of a vehicle on
    a highway or trafficway. DOT also alleged that the trial court erred as matter of law in
    relying on Birchfield for support. (R.R. at 47a-57a.)
    The trial court issued a subsequent opinion dated March 28, 2019, holding
    that “the implied consent statute impliedly requires a licensee to have driven on a public
    highway or trafficway,” again citing to sections 3802 and 3101(b) of the Vehicle Code.
    (Trial court op., 3/29/19, at 3.) The trial court recognized this Court’s prior decision in
    Department of Transportation, Bureau of Driver Licensing v. Bird, 
    578 A.2d 1345
    ,
    1348 (Pa. Cmwlth. 1990), wherein we held that “section 3101 places no limitations on
    4
    a police officer’s request for chemical testing under section 1547.” However, the trial
    court concluded that the Supreme Court’s decision in Birchfield altered that holding.
    The trial court explained that “[t]he entire holding in Birchfield is premised on the
    assumption that implied consent statutes are limited to areas where the state has
    jurisdiction to regulate,” i.e., public highways. (Trial court op., 3/29/19, at 5.) The
    trial court emphasized that Licensee’s accident in this case occurred on a private road.
    Discussion
    On appeal,4 DOT argues that the trial court erred as a matter of law in
    sustaining Licensee’s appeal because Officer Young had reasonable grounds to believe
    that Licensee operated his vehicle while under the influence on a highway or trafficway
    even though the accident occurred on a private road. We agree.
    In order to support a suspension of Licensee’s operating privilege under
    section 1547(b)(1) of the Vehicle Code, DOT had the burden of proving the following:
    (1) Licensee was arrested for violating Section 3802 of the
    Vehicle Code by a police officer who had “reasonable
    grounds to believe” that Licensee was operating or was in
    actual physical control of the movement of a vehicle while
    in violation of Section 3802 (i.e., while driving under the
    influence); (2) Licensee was asked to submit to a chemical
    test; (3) Licensee refused to do so; and (4) Licensee was
    specifically warned that a refusal would result in the
    suspension of his operating privileges and would result in
    enhanced penalties if he was later convicted of violating
    Section 3802(a)(1).
    4
    Our scope of review is limited to determining whether the findings of fact are supported by
    substantial evidence or whether the trial court committed an error of law or an abuse of discretion in
    reaching its decision. Piasecki v. Department of Transportation, Bureau of Driver Licensing, 
    6 A.3d 1067
    , 1070 (Pa. Cmwlth. 2010).
    5
    Martinovic v. Department of Transportation, Bureau of Driver Licensing, 
    881 A.2d 30
    , 34 (Pa. Cmwlth. 2005). In the present case, the parties stipulated before the trial
    court that DOT satisfied its four-part burden of proof set forth above.
    Nevertheless, the trial court sustained Licensee’s appeal on the basis that
    the Implied Consent Law impliedly requires a licensee to have driven on a public
    highway or trafficway. The trial court erred in reaching this conclusion as this Court
    has previously considered and rejected this very argument. See Bashore v. Department
    of Transportation, Bureau of Driver Licensing, 
    27 A.3d 272
     (Pa. Cmwlth. 2011).5 In
    Bashore, a Pennsylvania State Police Trooper was dispatched to Daub Lane, a gravel
    road which was marked as a “private drive” by a sign at its entrance, to investigate a
    possible hit and run involving a motorist driving under the influence of alcohol who
    struck a mailbox.6 Upon arrival, the State Trooper observed the licensee behind the
    wheel of her vehicle in a pull-off area on Daub Lane.
    After noticing that the licensee appeared extremely intoxicated and
    exhibited the signs of such, including a strong smell of alcohol, slurred speech,
    unsteadiness on her feet, and an inability to coherently answer questions, he placed the
    licensee under arrest for driving under the influence. After transporting the licensee to
    the police station, he advised her of her rights under section 1547 of the Vehicle Code
    by reading her the warning on DOT’s implied consent form. However, the licensee
    refused to submit to chemical testing. DOT thereafter notified the licensee that her
    5
    See also Bird, 
    578 A.2d at 1347
     (holding that section 1547 of the Vehicle Code “does not
    require an officer to have reasonable grounds to believe the motorist was driving, operating or in
    actual physical control of a vehicle on a highway or trafficway while under the influence of alcohol.”).
    6
    The State Trooper learned that the licensee’s husband reported the accident, stating that his
    wife, the licensee, was on her way home from her sister’s house when she struck the mailbox.
    6
    license would be suspended for one year as a result of her refusal. The licensee filed a
    statutory appeal with the trial court, which ultimately denied her appeal.
    The licensee then appealed to this Court, arguing that because she was not
    operating her vehicle on a highway or trafficway, the State Trooper did not have
    reasonable grounds to request that she submit to a chemical testing. We rejected the
    licensee’s argument. Although we acknowledged that section 3101(b) of the Vehicle
    Code references highways and trafficways in connection with a finding of a violation
    of Chapter 38, we held that it was “clear from a strict reading of the Implied Consent
    Law that it does not require that [the State] Trooper have reasonable grounds to believe
    that [the licensee] was operating her vehicle on a highway or trafficway,” but only that
    the State Trooper have “reasonable grounds to believe [the licensee] to have been
    driving, operating or in actual physical control of the movement of a vehicle while
    under the influence of alcohol.”7 Bashore, 
    27 A.3d at 275
    .
    Contrary to the trial court, we do not believe that our Supreme Court’s
    decision in Birchfield mandates a different result. In Birchfield, our Supreme Court
    considered a Fourth Amendment challenge to two state statutes, from North Dakota
    and Minnesota, that made it a crime to refuse chemical testing.                       However, in
    Pennsylvania, “[i]t is not a crime to refuse chemical testing.” Marchese v. Department
    of Transportation, Bureau of Driver Licensing, 
    169 A.3d 733
    , 739 (Pa. Cmwlth. 2017).
    Birchfield holds that chemical tests of breath continue to be permissible under state
    7
    Furthermore, this Court addressed a similar argument in Planchak v. Department of
    Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 1171 C.D. 2012, filed February 15,
    2013), wherein we held that section 3802 of the Vehicle Code does not contain a requirement that the
    licensee be found upon a highway or trafficway as an element of the offense and that the language of
    section 3101 was not restrictive because it did not state only on highways. Pursuant to section 414(a)
    of this Court’s Internal Operating Procedures, an unreported opinion may be cited for its persuasive
    value. 
    210 Pa. Code §69.414
    (a).
    7
    implied consent laws, but that blood tests are only permissible in three situations, where
    an officer obtains a warrant, where exigent circumstances exist, or where the driver
    voluntarily consents to the test. Birchfield does not hold that a civil sanction, such as
    the one at issue here, could not be imposed for refusing an officer’s request for either
    a breath or blood test. In other words, as this Court explained in Boseman v.
    Department of Transportation, Bureau of Driver Licensing, 
    157 A.3d 10
    , 21 (Pa.
    Cmwlth.), appeal denied, 
    170 A.3d 996
     (Pa. 2017), Birchfield does not apply to civil
    license suspension appeals under Pennsylvania’s Implied Consent Law.
    Returning to the present case, the record supports a finding that Officer
    Young had reasonable grounds to believe that Licensee was driving, operating, or in
    actual physical control of his vehicle while under the influence of alcohol. Whether
    reasonable grounds exist is a question of law reviewable by this Court on a case-by-
    case basis. Sisinni v. Department of Transportation, Bureau of Driver Licensing, 
    31 A.3d 1254
    , 1257 (Pa. Cmwlth. 2011). Reasonable grounds exist to support a license
    suspension when a person in the position of the police officer, viewing the facts and
    circumstances as they appeared at the time, could have concluded that the licensee was
    operating the vehicle while under the influence of intoxicating liquor.          Stahr v.
    Department of Transportation, Bureau of Driver Licensing, 
    969 A.2d 37
    , 40 (Pa.
    Cmwlth. 2009).
    Moreover, as we explained in Yencha v. Department of Transportation,
    Bureau of Driver Licensing, 
    187 A.3d 1038
    , 1044-45 (Pa. Cmwlth. 2018),
    An arresting officer need not prove that he was correct in his
    belief that the licensee was operating the vehicle while under
    the influence. Even if later evidence proves the officer’s
    belief to be erroneous, this will not render the reasonable
    grounds void. Further, an officer need not witness the
    licensee operating a vehicle to place him under arrest for
    driving under the influence. Additionally, an officer’s
    8
    reasonable belief that the licensee was driving while under
    the influence will justify a request to submit to chemical
    testing if “one reasonable interpretation of the
    circumstances” as they appeared at the time supports the
    officer’s belief. Further, courts appropriately defer to an
    investigating officer’s experience and observations where
    reasonable grounds exist to support the officer’s belief based
    on the totality of the circumstances.
    (Citations omitted).
    Here, the facts reveal that Officer Young was dispatched to an accident on
    a private road where he came in contact with Licensee, that Officer Young arrived at
    the scene within a few moments of the dispatch, that Licensee advised Officer Young
    that he was at the Sandy Creek Fire Department prior to getting into an accident, and
    that it was impossible to get from the Sandy Creek Fire Department to the location of
    the accident without traveling on a public road. These facts constituted reasonable
    grounds for Officer Young to believe that Licensee was driving, operating, or in actual
    physical control of his vehicle while under the influence of alcohol.
    Accordingly, the order of the trial court is reversed.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge
    9
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Daniel E. Johnson                      :
    :    No. 79 C.D. 2019
    v.                        :
    :
    Commonwealth of Pennsylvania,          :
    Department of Transportation,          :
    Bureau of Driver Licensing,            :
    Appellant            :
    ORDER
    AND NOW, this 20th day of November, 2019, the order of the Court of
    Common Pleas of Venango County, dated December 21, 2018, is hereby reversed.
    The one-year suspension of the operating privilege of Daniel E. Johnson, imposed
    by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of
    Driver Licensing, under section 1547(b)(1)(i) of the Vehicle Code, 75 Pa.C.S.
    §1547(b)(1)(i), is reinstated.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge